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apnair200204-29 09:23 AM04/29/2007: Elimination of Substitution of Aliens for the Certified Labor Certification Applications

As we stated earlier, the OMB had 90 days to make a decision on this DOL Final Rule. It was submitted on 01/26/2007 and the OMB cleared on 04/27/2007, just immediately prior to expiration of 90 days.
This final rule will not go into effect until it is published by the DOL in the federal register. Record reflects that this final rule will not be published in the federal register, Monday, 04/30/2007. We have yet to see what changes to the proposed version of the rule the DOL made in the final rule. However, it is certain that this rule will not go into effect on Monday, 04/30/2007, and there may still be some actions the employers can make before it is published in the federal register.
Pending Labor Certification Cases: PERM rule does not allow any amendments and no substitution of alien beneficiary available until the PERM application is certified. By the time PERM is approved, it may be too late to initiate the substitution. However, the cases which are pending at the BECs are different. The beneficiaries can be substituted inasmuch as the job order and the BEC supervised recruitment has yet to be initiated. At this time, the amendment of the BEC application does not require a paper request and e-mail or even phone call request followed by fax will work to substitute the alien. Under the final rule which will go into effect soon, the labor certification applications at the stage of DOL can survive only if the substitution has been approved at the time of release of the final rule. Accordingly, the employers can contact the BECs tomorrow, Monday, to amend the pending ETA 705 and alien beneficiary over the phone, via e-mail, followed by the phone calls and fax or straightforwardedly via fax. CAVEAT: If substitution is denied and original beneficiary ETA 750 is denied for the reason that there is no beneficiary, the employer can lose everything!!
Certified Labor Certification Cases: These cases will not be able to survive unless the I-140 petition is quickly filed on Monday substituting the alien beneficiary. The earliest filing date will be "Tuesday" since overnight delivery has to reach the Service Centers. Still worth trying. Once it is "filed," it will be safe. There remain a host of issues which will have to be resolved by the USCIS as to the consequences of the denial of these substitution I-140 petitions on issues other than alien beneficiaries qualifications such as the employer's financial ability to pay the proffered wage, etc. Obviously, the denial becomes a "final" action, the cases on appeal to the AAO will continue to remain outside the parameter of the elimination rule. Another question is the effect of motion to reopen of denial of substitution I-140 petitions. There is some chance that the USCIS may decide that once the motion is granted and I-140 petition is approved, the DOL's final rule of elimination of substitution will not affect the case. What if the employer refiles the substitution I-140 petitions? The chances of these cases will remail slim or nil. Since it will be considred a "new" filing of substitution I-140 petition, the USCIS may rule that such filing will be subject to the DOL's substitution elimination final rule. There will be other issues which fall under the jurisdiction of the USCIS rather than DOL as related to the interpretation of the substitution I-140 petitions. The USCIS is scheduled to initiate this rule making process sooner or later. Please stay tuned.
Impact on the Retention of Priority Date: The rule of retention of priority date is governed not by the DOL but by the USCIS. Under the USCIS rule, the priority date of the labor certification application is not retained until I-140 petition is "approved." Accordingly, if the decision of the denial of the substitution I-140 becomes final on appeal, the substituting alien will not be able to retain the priority. Neither the original beneficiary can retain the priority date unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.
Impact on the 7th-Year H-1B Extension: Until the substitution I-140 is denied and becomes final on appeal, the substitutiing alien will be able to continuously extend the H-1B status in one-year increment, but the substituted alien will not be able to extend the 7th-year H-1B status based on the substituted labor certification application. Once the decision of denial becomes final, the substituting alien will not be able to extend the H-1B status after that time, but the validity of the approved 7th-year H-1B status will remain valid until the expiration date.
Impact on the 245(i) Benefits: Grandfathering of the 245(i) benefits cannot be transferred to other aliens and substituting aliens cannot take over the 245(i) benefits unless the substitution was filed before April 30, 2001. Once the grandfathering is attached, it remains valid unless "not approveable at the time of labor certification application filing" is found. Accordingly, the denial of substitution I-140 petition on behalf of the substituting alien will have no affect on the original beneficiary's retention of the 245(i) benefits.
Well, let's wait and see the text of the soon-to-be published final rule.



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Legal07-21 10:32 PMvdlrao, Thanks for the great analysis.
I am using DOS visa statistics and I arrived at EB quota numbers for 2008 as 162,707. There were 22,707 unused FB visa's in 2007 based on the DOS visa statistics @ http://travel.state.gov/visa/frvi/statistics/statistics_1476.html
Typically the actual EB quota for the FY is revised in the September bulletin. I am not sure if DOS has already taken into account the new EB quota number for the Aug bulletin. If they hadn't taken into account the new quota number then we should see some forward movement in the Sep bulletin.

However the 28,795 AC-21 recaptured visa's U are talking about has already been used in 2002, please take a look at the below mentioned link for details regarding the usage of those visa's.

http://travel.state.gov/pdf/FY2003%20AppD.pdf

All the AC-21 recaptured visa's has been used by now.


It does look like all the AC21 numbers have been used up. Even if you don't take this into account, there are 40,000 + visa numbers available for use before Sep 30th.
Since we have been conditioned to receive only bad news for the past 3 years, we find it hard to believe. If this happens, EB-2 will get a good kickstart and with spillovers happening each quarter the dates should keep moving which vdlrao has been saying all along.

I also suspect among the 3 Llofgren bills, even if only the per-country quota elimination bill could be enacted, enough numbers may reach some long suffering EB3 India members.



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bfadlia02-19 02:35 PMI guess, you still have to answer the question: "How keeping people who are in US, having kids and families, on EAD/AP for years serves the purpose of diversity?"

Ow, I can convince a lot of people, by saying that US government wasted thousands of visas for countries without any country caps. Therefore "diversity" is a lousy and crappy excuse, the real problem is a complete mess, obsolete laws, corruption, and laziness of USCIS.

bestia, USCIS are allowed to use the unused visas from one category in another even if they exceed the quota, they just choose to be inefficient and not do that. If there are excess ROW visas unused, we all strongly support that they be used for other groups.. but decreasing the wait of one group at the expense of increasing the wait of another.. u'll have to lose some people with that direction



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perm2gc06-26 01:48 PMnope. The august bulletin which gets released mid july didn't get into our arguements at all. We were specifially talking about july filers and july month.

Yes, i agree that if August bulletin retrogresses than that affects only august filers and not the people eligible to file in july.
my attorney also said same thing..

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ramus06-28 08:48 PMThere is difference... We didn't spend any money after June VB but everybody spent minimum $500 after July VB...

If they don't accept application then USCIS made govt = 500* 100,00= $ 5000000.




Sure!!!
Nothing will come out of it.

Whats the difference between God and USCIS?
Atleast God doesn't think that He is USCIS.

So, relax.
In the worst case scenario, we will be no better off in July than we are in June.



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newtoearth05-03 01:56 AM...

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ItIsNotFunny03-26 01:19 PM......because you are using labor substitution.

At this time nobody can do anything legally against people who are using labor substitution and employers who are secretly selling labor substitution.

This substitution is increasing backlogs, is unfair to people waiting in line, encourages employer exploitation since they use it as an incentive to woo employees and then exploit them, 'selling' is illegal but one must complain against the employer and the employee for DOL to act.

Lawyers are part of this scam. I have read in some posts that even AILA opposed when labor substitution was being ended. It is a lost business opportunity for their lawyer members!!

I have pointed several labor substitution members on the forums in the past. some of them were never found on the forum since they feared being caught. They must have changed their ID or ran away. So until a law is passed for banning it, such 'trade' that hurts our interests will continue.

Good that you guys are only buying labor certifications. There is no 'legal' process to buy greencards directly from employers yet!!

I am not using, but I still agree that given opportunity you should use it.



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beautifulMind07-16 02:47 PMI am currently working as a Programmer Analyst on EB3 and Using my EAD through 485.

I plan to convert to a new postition that of Senior Applications Developer in the same company where the job duties will be atleast 50% different from my existing position

But here is the problem If i am using my EAd obtained from Eb3 program Analyst position then can I work on another position which is 50% different from my existing position as per AC21 rules

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Macaca07-04 01:01 PMMy point is not to discourage any one, but when we wirte to media, folks will investigate all before they publish to main stream. We need to be fair and should provide the correct information, else we might loose the coverage.

This is important. I am updating my original template and putting the name of the person who said it. That person should be able to stand up when needed!

Also, please look at all possible holes in my points. We need to be rock solid!



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suhanya08-12 02:15 AMI am doing an employer change - HtoH transfer.

Do I have to wait for the H1 transfer approval or is the receipt good
enough for me to travel abroad? Do I have to get my new H1 stamped
before reentering? I still have the dates on my old h1 (from AMD)
valid on the stamping on my passport - will this suffice? Please
explain.

Also my Advanced Parole is on its way. Will I be able to travel on EAD
and AP, when my H1 transfer is being filed? Can I still hold on to my
H1 status, if I traveled using my AP?


Regards,
Suhanya.

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AirWaterandGC05-11 03:44 PMThanks for the response. Govt sends a check for each child every month ! Thats too good to be true. How much is the check for.

pmt = payment

Government sends you a check every month for each child you have.

Here is an excellent calculator to estimate your Canadian income taxes.

http://www.ey.com/GLOBAL/content.nsf/Canada/Tax_-_Calculators_-_2006_Personal_Tax

Canada has something called RRSP which works the same way as a 401 K plan. However in an RRSP you can actually withdraw funds without penalty upto 50% of your account for purchasing your fiorst home ( In US you can only take loan not wiothdrawl).

Also Canada doesnt allow jopint filing of taxes for married couples. Each spouse has to individually file taxes per my understanding.



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mallu02-15 06:26 PMThe reason we have greater supply of workforce in IT from one specific country is not because of skills or talents. Almost every IT workers from ROW and China came to the US as a foreign student after TOEFL, GMAT, GRE, internship and only then landed a job in IT. Whereas the preponderence of IT workers from India came here through L1/B1/H1 sponsorship through bodyshops. Attending school, preparing for generalized tests requires time, money and patience. This is one big factor why the supply curve is skewed.

I think it was reported that students from India is the largest % of students in US universities.

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snathan08-15 10:33 PMBollywood should first pay taxes, none of these icons, pay taxes legimately in India, remember them dancing in the partys of mafia, which is tied to terrorists, I think the agent did a great job in nabbing this guy. The VVIP mentality should end in India. Stupid illeterate politicians are over playing this, Ambika Soni should do what she is supossed to do in her office.

Then India would become a well developed country and will rule the world. :D



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gcfriend6508-31 10:12 AMFor the Police certificate at the Indian consulate, do they keep the passport for 45 days i.e. until clearance is received. Or do we get the passport back the same day on which we apply and then the certificate is sent later.


I am doing my Canadian Immigration myself.

It is fairly a simple and straightforward process. So my advice is "Do it yourself". Immigration lawyers do normally charge more that $1000 and make mistakes.

Since it takes around 1.5 years for the entire process to complete, send the application as soon as possible. Dont wait for gathering all the document! That will ensure that you get a early priority date. If more documents are needed, they will ask you. (Most people sent English Proficiency and Police Certificates after submitting the application, though they are required to be part of the initial application)

I can describe the procedure:

1. Calculate your points based on the information on Canada Immigration website. If it is more that 67, you are good.

2. To prove English proficiency, take IELTS test. You need to register for the test as soon as possible since some centers are always full. (Some of my friends who studied in USA skipped IELTS - rather they wrote a letter stating that they are proficient in English as they studied/worked in USA)

3. Make sure you have the required funds. It's around $13,000 for a 2 member family. (Again check the Canadian Immigration website for accurate info)

4. Get experience letters if you are claiming experience.

5. Get Birth Certificates and Police Certificates. If you are an Indian, the link you need to look for is http://www.indianembassy.org/newsite/misc_guide.asp

6. Though they do ask you to send US FBI Police Certificates, do it later. (They will ask you for updated FBI Police Certificates evenif you submit it earlier)

7. Fill the forms, attach the documents and send it!!!!


Visit http://www.canada-city.ca/canada-immigration/ or
http://www.immigration.ca/discussion/forum.asp?FORUM_ID=4 for further discussions.

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sertasheep07-04 12:47 PMamitjoey, janakp, tikka, macaca, others, please check your email or Private messages for a proposed conf call for some of the key members from IV



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jayleno07-21 06:17 PMI'm enjoying this thread more than I enjoyed the predictions one. I'm imagining a qucikstar star reading this thread and smiling to myself. My wife thinks I'm reading a joke on the internet.

Keep them coming guys.

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gc_aspirant_prasad07-10 11:23 AMByeUsa - all the very best. May be I ll see you in Canada soon too.



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onemoredesi05-15 08:38 PMHello Friends and my fellow GC awaiters..
I have my labor pending for the past 3 yrs (my PD is Aug 2003) and have been waiting for ever. Inspite having a Master's I did filee in EB3 just because I work for a large company which does not allow to file in EB2.

Anyways, I came across a company who said that they have a pre approved labor (late 2002) priority date. Is it wise to go for it or wait for something in EB category to move ahead?. I have at least 1 yr 3 months on H1 and will not have any other options except to stay in the company after 3 months.
Is it worth taking the risk and go with the labor substitution?
The second question/advice I'd like from you is:
If I go back to the same company after 6 months because of some issue with the labor can I still preserve my 2003 PD?
Pls let me know your opinion.
Thx a lot guys.

Hope is a good thing, maybe the best of things. And no good thing ever dies
1MoreDesi !



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mundada07-10 11:32 AMBest Wishes!



BharatPremi09-25 07:45 PMQuarterly spill over: no law change required; supported by both EB2 and EB3. This is the way to go.

Yes, it is supported by both but which group would support which method? Quarterly horizontal or quarterly vertical? :)



coopheal10-10 07:16 AMI agree, the notion of fix our problem so that we housing problem is not a good approach.
Our situation is grave enough that it needs a focus on its own. Our efforts should be to bring this on fore front of the issues being discussed in congress and in public media.

While it is a good idea to educate the congress regarding the impact the EB Green Card applicants could have on the Housing Market. It is a terrible idea to propose a legislation which would offer GCs to applicants who would purchases houses in US. To put it bluntly, the legislation seems to be meant for selling GCs to applicants who are in a position to afford it, offering GC to applicants who will invest in housing market is akin to giving out GCs for cash and there is already a category for that. How would one factor in the CP applicants like nurses and PT who are waiting in their home countries?
The idea should be modified to spread the message regarding the positive impact that the EB GC applicants could have on the housing market and not to create a niche category of EB applicants who can purchase their GC to scoot ahead of other less fortunate ones. This proposal should be nipped in the bud before some anti immigrant group or advocate like Lou gets wind of it.